COLORADO COURT OF APPEALS ______________________________________________________________________________ Court of Appeals Nos. 08CA0811 & 08CA1514 City and County of Denver District Court No. 05CV5102 Honorable Christina M. Habas, Judge Honorable Lawrence A. Manzanares, Judge ______________________________________________________________________________ Hollis Sawyer, by and through her next of friend, Jacqueline Sawyer,
Plaintiff-Appellant,
v.
Kindred Nursing Centers West, LLC, a Delaware limited liability company, d/b/a Iliff Care Center; Kindred Healthcare, Inc., a Delaware corporation, d/b/a Iliff Care Center; and Susan Johnson, individually and as administrator of Iliff Care Center, Defendants-Appellees, and Concerning Bonnie Sawyer, individually, and Jacqueline Sawyer, individually and as the personal representatives of the Estate of Hollis Sawyer, deceased, Appellants.
--------------------AND--------------------
City and County of Denver District Court No. 07CV6918 Honorable Morris B. Hoffman, Judge ______________________________________________________________________________
Bonnie Sawyer, individually, and Jacqueline Sawyer, individually and as the personal representative of the Estate of Hollis Sawyer, deceased,
Plaintiffs-Appellants,
v. Kindred Nursing Centers West, LLC, a Delaware limited liability company, d/b/a Iliff Care Center; Kindred Healthcare, Inc., a Delaware corporation, d/b/a Iliff Care Center,
Defendants-Appellees. ______________________________________________________________________________
JUDGMENTS REVERSED AND CASES
REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE GRAHAM
Gabriel and Plank*, JJ., concur
Announced October 15, 2009 ______________________________________________________________________________
Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff, Denver, Colorado, for Plaintiffs-Appellants and Appellants
Gordon & Rees LLP, Thomas B. Quinn, Jennifer C. Forsyth, Denver, Colorado, for Defendants-Appellees *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2009.
This consolidated matter concerns two separate but related
lawsuits against defendants, Kindred Nursing Centers West, LLC
and Kindred Healthcare, Inc. (collectively, Kindred), who operate a
nursing home.
As to the first lawsuit (appealed as No. 08CA0811)1, plaintiffs,
Bonnie and Jacqueline Sawyer (collectively, the Sawyer daughters),
appeal the trial court’s order denying their motion to intervene as
well as the judgment dismissing the negligence complaint filed by
their mother, Hollis Sawyer (Mrs. Sawyer), under C.R.C.P. 25(a)(1)
for failure to substitute parties following Mrs. Sawyer’s death. We
reverse the judgment dismissing the complaint in that lawsuit and
remand with leave to serve the suggestion of death upon the Sawyer
daughters and to substitute parties in accordance with C.R.C.P. 25.
As to the second lawsuit (appealed as No. 08CA1514), the
Sawyer daughters appeal the trial court’s judgment dismissing their
1 We refer to the Sawyer daughters collectively even though they were not parties to the first lawsuit in No. 08CA0811. Jacqueline acted as next friend to Mrs. Sawyer. Both daughters attempted to intervene in the first lawsuit as plaintiffs and both daughters initiated the second lawsuit, appealed as No. 08CA1514.
1
claims as estate representatives against Kindred for wrongful death
and violations of the Colorado Consumer Protection Act (CCPA).
Because we conclude that the trial court erred in dismissing
the first lawsuit and in denying the Sawyer daughters’ request to
intervene, we also reverse the judgment dismissing the second
lawsuit on the basis of claim prelusion.
I. Background
Mrs. Sawyer filed a complaint against Kindred on July 1,
2005, alleging numerous acts of negligence by Kindred in caring for
her during her residency at the nursing home. Because Mrs.
Sawyer was incapacitated, the suit was filed on her behalf by her
next friend and daughter, Jacqueline Sawyer.
On July 22, 2005, Mrs. Sawyer died. Kindred had not filed an
answer to Mrs. Sawyer’s complaint at the time of her death. That
same day, Mrs. Sawyer’s counsel filed a suggestion of death on the
record pursuant to C.R.C.P. 25(a)(1). In the suggestion of death,
counsel stated that he was conferring with Mrs. Sawyer’s surviving
children and would notify the court of any substitution of parties or
claims within ninety days.
2
No substitution of claims or parties occurred, and on
November 11, 2005, Kindred filed a motion to dismiss the complaint
based on the failure to substitute parties pursuant to C.R.C.P.
25(a)(1). No response to Kindred’s motion was filed, and the trial
court subsequently dismissed the first lawsuit with prejudice.
On July 17, 2007, the Sawyer daughters, individually and as
representatives of Mrs. Sawyer’s estate, filed their complaint against
Kindred for wrongful death and violations of the CCPA arising from
Mrs. Sawyer’s care in Kindred’s nursing home. The same attorney
who represented Mrs. Sawyer in the first lawsuit represented the
Sawyer daughters in the second lawsuit. Kindred filed a motion to
dismiss the second lawsuit, arguing that the dismissal with
prejudice of the complaint in the first lawsuit barred the second
lawsuit under the doctrine of claim preclusion. The trial court
dismissed the second lawsuit on March 1, 2008 on the basis of
claim preclusion.
On March 11, 2008, after both lawsuits had been dismissed,
the Sawyer daughters filed a motion to reopen and intervene in the
first lawsuit under C.R.C.P. 24(a)(2). The trial court denied the
motion as untimely.
3
These appeals followed.
II. C.R.C.P. 25(a)(1)
We conclude the first lawsuit was not properly dismissed
under C.R.C.P. 25(a)(1).
The Sawyer daughters advance essentially two contentions:
(1) C.R.C.P. 25(a)(1) did not apply to Mrs. Sawyer’s negligence claim
because that claim did not survive her death; and (2) the court
lacked authority to dismiss the complaint because Mrs. Sawyer’s
counsel (now counsel to the Sawyer daughters) failed to comply
with the service requirements of C.R.C.P. 25(a)(1).
We conclude that C.R.C.P. 25(a)(1) was applicable to Mrs.
Sawyer’s negligence claim. We further conclude that C.R.C.P.
25(a)(1) mandates personal service of the suggestion of death on
nonparty successors or personal representatives in accordance with
C.R.C.P. 4. Because the Sawyer daughters were not personally
served with the suggestion of death, the ninety-day limit to
substitute parties was not triggered and the trial court improperly
dismissed the first lawsuit.
4
A. Application of C.R.C.P. 25(a)(1)
The Sawyer daughters contend that C.R.C.P. 25(a)(1) was
inapplicable because Mrs. Sawyer’s negligence claim did not survive
her death. They argue that her claim sought only noneconomic
damages and, therefore, they could not have maintained the
negligence action. Hence, in their view, the only proper procedure
was to commence the second lawsuit as a wrongful death action.
We disagree.
“[O]ur interpretation of the rules of civil procedure involves
questions of law, which we review de novo.” Keenan ex rel. Hickman
v. Gregg, 192 P.3d 485, 487 (Colo. App. 2008) (quoting Isis Litig.,
L.L.C. v. Svensk Filmindustri, 170 P.3d 742, 744 (Colo. App. 2007));
see also People v. Shell, 148 P.3d 162, 178 (Colo. 2006) (we
interpret rules of procedure consistently with principles of statutory
construction); cf. In re Estate of Wiltfong, 148 P.3d 465, 468 (Colo.
App. 2006) (statutory interpretation is a question of law we review
de novo).
C.R.C.P. 25(a)(1) provides in pertinent part that “[i]f a party
dies and the claim is not thereby extinguished, the court may order
substitution of the proper parties.” Section 13-20-101(1), C.R.S.
5
2009, specifies that “[a]ll causes of action, except actions for slander
or libel, shall survive and may be brought or continued
notwithstanding the death of the person in favor of or against whom
such action has accrued” (emphasis added). See also Publix Cab
Co. v. Colo. Nat’l Bank, 139 Colo. 205, 221, 338 P.2d 702, 710
(1959) (holding that actions of law generally do not die with the
person).
The Sawyer daughters argue that because their claim in the
second lawsuit is for wrongful death, Mrs. Sawyer’s negligence
claim in the first lawsuit does not survive her death because her
claim sought only noneconomic damages. While section 13-20-
101(1) does not preclude an action for wrongful death, it does not
state that wrongful death is the exclusive claim that survives the
decedent, nor does it provide that claims of the decedent that form
the basis of a wrongful death action are extinguished. Here, the
Sawyer daughters, as personal representatives of Mrs. Sawyer’s
estate, could have been substituted as parties and prosecuted the
negligence claim. See Espinoza v. O’Dell, 633 P.2d 455, 466 (Colo.
1981) (holding that “[t]he personal representative of the decedent’s
estate, by necessity, stands in the decedent’s shoes” in a survival
6
action and “[t]he estate, not the deceased himself, is the real
beneficiary of the surviving cause of action”).
The Sawyer daughters argue that because Mrs. Sawyer sought
damages only for noneconomic loss, her negligence claim did not
survive her death. We note that Mrs. Sawyer’s complaint states
that her “injuries include economic and non-economic loss.”
However, even assuming that her damages were purely
noneconomic, as the Sawyer daughters now assert, Mrs. Sawyer’s
negligence claim nonetheless survived her death.
Section 13-20-101(1) limits damages recoverable in a personal
injury survival action to “loss of earnings and expenses sustained or
incurred prior to death.” This is a limitation on damages and does
not modify the plain statement that “[a]ll causes of action” shall
survive the death of the plaintiff. The cause of action for negligence
survived Mrs. Sawyer’s death, regardless of the type of damages to
which she was entitled.
Accordingly, we conclude that the trial court properly applied
C.R.C.P. 25(a) to Mrs. Sawyer’s negligence claim.
7
B. Compliance with C.R.C.P. 25(a)(1)
We must next decide whether C.R.C.P. 25(a)(1) required that
the suggestion of death be served on the Sawyer daughters
pursuant to C.R.C.P. 4, and, if so, whether the trial court had
authority to dismiss the case for failure to substitute parties within
ninety days. We conclude that C.R.C.P. 25(a)(1) requires personal
service at least on the decedent’s successors and personal
representatives and, absent such service here, the trial court lacked
authority to dismiss the complaint because nothing in the record
before us establishes that the suggestion of death was properly
served on the Sawyer daughters as nonparties under C.R.C.P.
25(a)(1).
C.R.C.P. 25(a)(1) provides that
[t]he motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of process.
Significant here, the suggestion of death must be served in the
same manner as the motion: “Suggestion of death upon the record
is made by service of a statement of the fact of death as provided
8
herein for the service of the motion and by filing of proof thereof.”
Id.
Neither of the Sawyer daughters was a party to the first
lawsuit. Although Jacqueline acted as next friend for her mother, a
next friend is not a party to the suit. Black v. Cullar, 665 P.2d
1029, 1031 (Colo. App. 1983). Thus, only Mrs. Sawyer was a party;
Jacqueline Sawyer was not a party in her capacity as next friend,
nor was Bonnie Sawyer a party.
Whether nonparty successors or the personal representative of
the decedent must be served with a suggestion of death and how
such persons must be served under C.R.C.P. 25(a)(1) are matters of
first impression in Colorado. However, Fed. R. Civ. P. 25 is
substantively identical to C.R.C.P. 25(a)(1). When a Colorado rule is
similar to a federal rule of civil procedure, the court may look to
federal authority for guidance in construing the Colorado rule.
Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002); McDaniels v. Laub,
186 P.3d 86, 87 (Colo. App. 2008). Therefore, we turn to federal
authority interpreting Fed. R. Civ. P. 25(a) to inform our analysis of
C.R.C.P. 25(a)(1).
9
Fed. R. Civ. P. 25(a), which was stylistically amended in 2007,
explicitly requires that nonparties be personally served with the
suggestion of death:
(1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. . . . . (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.
(Emphasis added.)
The federal rules were amended in 2007 “as part of the general
restyling of the Civil Rules to make them more easily understood
and to make style and terminology consistent throughout the
rules.” Fed. R. Civ. P. 25 advisory committee’s note. The 2007
amendments were “intended to be stylistic only.” Id. By clarifying
in a separate subsection that a suggestion of death must be served
in the same manner as the motion and notice of hearing, the 2007
10
amendments addressed any lingering confusion as to service
requirements for a suggestion of death. However, because the 2007
amendments were “stylistic” rather than substantive, the clear
implication of the amendment to Rule 25 was that the pre-2007
rule required service of the suggestion of death in the same manner
as the motion for substitution and notice of hearing. See id.
Prior to the 2007 amendments, Fed. R. Civ. P. 25(a)(1) and
C.R.C.P. 25(a)(1) were identical. Federal decisions interpreting the
previous version of Fed. R. Civ. P. 25(a)(1) consistently held that a
suggestion of death must be personally served on the nonparty
successors or personal representative of the decedent in the
manner provided in Rule 4 to commence the running of the ninety-
day time limit for substitution of parties. See, e.g., Atkins v. City of
Chicago, 547 F.3d 869, 873 (7th Cir. 2008); Barlow v. Ground, 39
F.3d 231, 233-34 (9th Cir. 1994); Grandbouche v. Lovell, 913 F.2d
835, 837 (10th Cir. 1990); Fariss v. Lynchburg Foundry, 769 F.2d
958, 960 (4th Cir. 1985); Inglis v. Buena Vista Univ., 235 F. Supp.
2d 1009, 1029-30 (N.D. Iowa 2002); Kaldawy v. Gold Serv. Movers,
Inc., 129 F.R.D. 475, 477 (S.D.N.Y. 1990); see also 7C Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
11
Procedure § 1955 (3d ed. 2007) (suggestion of death must be served
“upon persons not parties in the manner provided in Rule 4 for the
service of a summons”).
Also, while C.R.C.P. 25(a)(1) does not specify which nonparties
must be served with the suggestion of death, the language of the
rule providing that the “motion for substitution may be made by
any party or by the successors or representatives of the deceased
party” (emphasis added) indicates that, at minimum, the successors
or personal representatives of the decedent, as nonparties, must be
served in accordance with C.R.C.P. 4. Federal decisions are
consistent with this interpretation. In Atkins, 547 F.3d at 873, the
court held that nonparties with “a significant financial interest in
the case, namely the decedent’s successors (if his estate has been
distributed) or personal representative ([if] it has not been), should
certainly be served.” See also Fariss, 769 F.2d at 962 (concluding
that the “nonparties for whom Rules 25(a)(1) and 4(d)(1) mandate
personal service are evidently the ‘successors or representatives of
the deceased party’”).
We are aware that the Utah Supreme Court in Stoddard v.
Smith, 27 P.3d 546, 550 (Utah 2001), cited by Kindred, has held
12
that nonparties need not be served with the suggestion of death
under Utah R. Civ. P. 25(a)(1), which is substantially identical to
C.R.C.P. 25(a)(1), to trigger the ninety-day limitation period. We
reject the invitation to adopt the reasoning and interpretation
employed in Stoddard for two reasons. First, it is well established
that federal authority provides guidance when a Colorado rule is
similar to a federal rule of civil procedure. Benton, 56 P.3d at 86;
McDaniels, 186 P.3d at 87. The parties do not cite any federal case,
and we have found none, holding that a suggestion of death need
not be served on nonparties in accordance with Rule 4. Federal
case law is decidedly to the contrary, and the latest version of Fed.
R. Civ. P. 25 explicitly clarifies that the rule requires personal
service of the suggestion of death on nonparties. Second, we
perceive that the Stoddard court’s reasoning is strained because it
found an ambiguity in the rule which convinced it that the motion
to substitute must be served on successors and representatives,
but the suggestion of death need not be so served. We discern that
the language of the rule is reasonably clear and are convinced by
the fact that so many federal courts agree. Accordingly, we decline
to adopt the Stoddard court’s interpretation of Rule 25(a)(1).
13
We therefore conclude that to be effective under C.R.C.P.
25(a)(1), the suggestion of death here should have been served upon
the Sawyer daughters in accordance with C.R.C.P. 4.
As relevant here, C.R.C.P. 4(e)(1) provides that personal service
upon a natural person may be effected by
delivering a copy thereof to the person, or by leaving a copy thereof at the person’s usual place of abode, with any person whose age is eighteen years or older and who is a member of the person’s family, or at the person’s usual workplace, with the person’s secretary, administrative assistant, bookkeeper, or managing agent; or by delivering a copy to a person authorized by appointment or by law to receive service of process.
Process may be served by any person who is eighteen years of
age or older and not a party to the action. C.R.C.P. 4(d). Proof of
personal service must be made by a “statement duly acknowledged
under oath by any other person completing the service as to date,
place, and manner of service.” C.R.C.P. 4(h)(1).
Here, the Sawyer daughters were the co-personal
representatives of Mrs. Sawyer’s estate, and nothing in the record
shows that the suggestion of death was personally served on them
in accordance with C.R.C.P. 4. Notably, the suggestion of death
14
itself lacks any statement or certificate of service. Likewise,
Kindred’s motion to dismiss the first lawsuit for failure to substitute
parties does not allege that the suggestion of death was personally
served on the Sawyer daughters. Additionally, Kindred does not
dispute that the suggestion of death was not personally served on
the Sawyer daughters, arguing instead that “the daughters’ attorney
cannot complain that he did not properly serve the suggestion of
death when he represented Mrs. Sawyer, on whose behalf he filed
the suggestion of death.” Because C.R.C.P. 25(a)(1) requires
personal service of the suggestion of death on nonparties, it is
relevant to our analysis that the Sawyer daughters, as interested
nonparties, were not personally served with the suggestion of death.
The fact that it was Mrs. Sawyer’s counsel who filed the suggestion
of death and failed to serve it on the Sawyer daughters is not
relevant here.
We recognize that the Sawyer daughters were aware their
mother had died, and that counsel represented in the suggestion of
death that he was “conferring with Mrs. Sawyer’s surviving children
to determine whether substitutions of parties or claims will be made
in this matter.” However, nothing in the record before us indicates
15
that the Sawyer daughters were personally served in accordance
with C.R.C.P. 4. The plain language of the rule, coupled with the
highly persuasive decisions interpreting the federal equivalent,
compel us to conclude that the requirements of C.R.C.P. 25(a)(1) —
personal service of the suggestion of death on nonparties in
accordance with C.R.C.P. 4 — were not followed here, and thus the
ninety-day time limit for substitution was not triggered.
Enforcement of procedural requirements is proper and
necessary where it is essential to shield substantive rights. See
Trans Shuttle, Inc. v. Pub. Utils. Comm’n, 58 P.3d 47, 50 (Colo.
2002). The Sawyer daughters would lose the opportunity to litigate
the case on its merits were the requirements of C.R.C.P. 25(a)(1) to
be disregarded in this case. This would be inconsistent with the
“primary purpose of courts . . . to provide a forum for litigating
disputes.” Id.
We also note that Kindred could have avoided this result by
ensuring that the suggestion of death was personally served on the
Sawyer daughters, or, alternatively, filing and serving its own
suggestion of death. C.R.C.P. 25(a)(1) states that the motion for
substitution may be made by “any party” (emphasis added) and
16
served on nonparties in accordance with C.R.C.P. 4. Because the
suggestion of death is to be filed and served in the same manner as
the motion, it follows that any party may file and serve the
suggestion of death. Had Kindred procured personal service of the
suggestion of death on the Sawyer daughters, the ninety-day limit
would have been triggered.
Because the suggestion of death was not personally served on
the Sawyer daughters as Mrs. Sawyer’s personal representatives,
the ninety-day time limit was not triggered. The trial court thus did
not have authority to dismiss the case for failure to substitute
parties. U.S. Nat’l Bank v. Bartges, 120 Colo. 317, 337, 210 P.2d
600, 610 (1949) (noting that “[j]urisdiction includes not only the
power to hear and determine a cause, but to enter and enforce a
judgment” and holding that “[i]f there is no right in the court to
enter the particular judgment . . . the entry is without jurisdiction”
(quoting Hough v. Lucas, 76 Colo. 94, 101, 230 P. 789, 791 (1924))).
Accordingly, we conclude that the trial court lacked authority
and thus improperly dismissed the first lawsuit for failure to
substitute parties. As a result, the Sawyer daughters should have
been permitted to intervene under C.R.C.P. 24.
17
III. Claim Preclusion
Because the first lawsuit was improperly dismissed, we agree
with the Sawyer daughters’ contention that claim preclusion does
not bar the second lawsuit.
Claim preclusion works to preclude relitigation of matters that
have already been decided, as well as matters that could have been
raised in a prior proceeding but were not. Argus Real Estate, Inc. v.
E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005). For a
claim in a second judicial proceeding to be precluded by the prior
proceeding, there must exist (1) finality of the first judgment, (2)
identity of the subject matter, (3) identity of the claims for relief,
and (4) identity or privity between the parties to the actions. Id.
There was no final judgment in the first lawsuit because the
trial court lacked authority to dismiss it for failure to substitute
parties. See Russell v. Shurtleff, 28 Colo. 414, 417, 65 P. 27, 28
(1900) (holding that one of the essentials of a valid judgment is that
“the court pronouncing it must have jurisdiction to render that
particular judgment”). We thus conclude that claim preclusion is
inapplicable to the second lawsuit. We need not reach the Sawyer
18
daughters’ remaining contentions concerning the other elements of
claim preclusion.
IV. Conclusion
In light of our conclusion that the complaints were improperly
dismissed, we need not reach the Sawyer daughters’ remaining
contentions.
In light of our disposition, we also deny Kindred’s request for
attorney fees.
The judgment dismissing the first lawsuit is reversed, and the
case is remanded for service upon the Sawyer daughters within
thirty days and the substitution of those parties and claims as
applicable. The judgment dismissing the second lawsuit is also
reversed, and the case is remanded for further proceedings
consistent with this opinion.
JUDGE GABRIEL and JUDGE PLANK concur.
19